Legal Discussion of OGL 1.2

[pemerton]

I agree with you 100% that they are unable to affect agreements between other parties. My worry was that they might try anyway.

I don't know what trying would look like here.

At this point it's hard for me to make an assumption WotC will continue to operate in good faith regarding the use of 1.0a.

I don't know what it means for WotC to operate in good faith in relation to X's contract with Y to which WotC is not a party, and which does not implicate WotC's copyrighted works.

If WotC try to insist on asserting their copyright in the text of the OGL that gets a bit trickier. For the reasons I (and some others) have posted seems like a weak claim, and to me not one they would bother making. But even if they did, it wouldn't bring any contracts to an end. So what would then be needed would be a mechanism within that ecosystem for parties to mutually vary the terms of their licence so as to no longer require one another to reproduce the text of the OGL.

you agree with my assessment that in order to combine SRD content under licensed under 1.2 and non-SRD content licensed I will need to license those in seperate agreements with the relevant parties? The SRD under 1.2, and the non-SRD non-WotC content under the still valid between me and $publisher no matter what WotC say 1.0a?

Yes. I think that's clear. OGL v 1.2 section 5(b) expressly says as much.

It's some sort of blending of content - eg you want to publish a D&D sub-class that uses a PF2 ability - that becomes tricky. Because in this case it's not clear that you can honour your OGL v 1.0a obligations to Paizo, in respect of that content (which would be OGC in the terms of your licence with Paizo) without breaching your OGL v 1.2 obligations to WotC.

 

[Snarf Zagyg]

I think the issue here is that we're afraid they may try and act like one anyway

I'm mostly happy that I have this OGL 1.2/1.0a mix nailed. My main concern is that WotC will not agree and will try and sue anyway, with the most likely result being me being unable to stand up to them and fight for my legal rights. It would be better for the entire 3PP community if WotC issue clear guidelines on how they expect 1.2 and 1.0a to be used together when there is also third-party 1.0a OGC in the mix, simply to ensure good faith between parties and no accidental misunderstandings.

On the one hand, all of this is going very quickly (especially in terms of legal documents with far-reaching effect), so I would expect that they will continue to evolve and explain as they catch their breath.

On the other hand ... I mean ... they did explain the OGL 1.0a before .... with a FAQ .... and, um. Yeah. Given that, I'm not sure that any explainer is going to help much, unfortunately.

 

[pemerton]

Would you consider a class by a 3PP that depends upon SRD mechanics "WotC-Connected OGC", or do you specifically mean WotC-OWNED OGC?

Under the OGL v 1.2 you accept that there is a category of unlicensed content. If your work contains unlicensed content it doesn't get the benefit of the OGL v 1.2, and so would infringe WotC's copyright in respect of that content.

If you work contains content in which you own the copyright, but which is derivative of unlicensed content, I think the better view seems to be that your work is not licensed - because the licence only extends to using and modifying licensed content. So you might be liable to WotC for infringement of their copyright. And I don't see that you could plead a v 1.0/1.0a licence in your defence, given you've accepted that all the WotC content it covered is (now, by force of contract) unlicensed.

I think the issue here is that we're afraid they may try and act like one anyway

Again, I don't know what this even looks like. WotC have never purported to legislate. They purport to be exercising private law powers, around the terms on which they license their IP.

I'm mostly happy that I have this OGL 1.2/1.0a mix nailed. My main concern is that WotC will not agree and will try and sue anyway, with the most likely result being me being unable to stand up to them and fight for my legal rights. It would be better for the entire 3PP community if WotC issue clear guidelines on how they expect 1.2 and 1.0a to be used together when there is also third-party 1.0a OGC in the mix, simply to ensure good faith between parties and no accidental misunderstandings.

In section 5(b) they say

You may permit the use of your Content on any terms you want. However, if any license you offer to your Licensed Work is different from the terms of this license, you must include in the Licensed Work the attribution for Our Licensed Content found in the preamble to the applicable SRD, and make clear that Our Licensed Content included in your Licensed Work is made available on the terms of this license.​

So haven't they already answered your question in the express terms of the licence.

 

[rcade]

I'd like to hear what lawyers think about the Severability Clause in OGL 1.2. As an author I've signed a lot of contracts that had a Severability Clause. I've never seen one that also says "if any of this is held to be unenforceable we can choose to cancel the entire thing." That's the opposite of severability!

 

[Matt Thomason]

In section 5(b) they say

You may permit the use of your Content on any terms you want. However, if any license you offer to your Licensed Work is different from the terms of this license, you must include in the Licensed Work the attribution for Our Licensed Content found in the preamble to the applicable SRD, and make clear that Our Licensed Content included in your Licensed Work is made available on the terms of this license.​

So haven't they already answered your question in the express terms of the licence.

I believe I know how to do it (see example above).

I would prefer a clear statement from them with an example of how they understand the license appendix to a work will look when it combines SRD content under 1.2 with 3PP content released under 1.0a, and make it clear they are absolutely fine with us continuing to print their copyrighted, "deauthorized" 1.0a license in a 1.2-licensed book with respect to content we are reusing from non-WotC sources.

I want to ensure I am not walking into a carefully-laid trap they have engineered to destroy 3PPs. Understand that I'm currently treating them as a hostile entity, willing to exploit loopholes to push out the competition - because it appears to me that's exactly how they are behaving.

 

[S'mon]

I'd like to hear what lawyers think about the Severability Clause in OGL 1.2. As an author I've signed a lot of contracts that had a Severability Clause. I've never seen one that also says "if any of this is held to be unenforceable we can choose to cancel the entire thing." That's the opposite of severability!

100%! It is the opposite of a normal severability clause.

 

[Matt Thomason]

Again, I don't know what this even looks like. WotC have never purported to legislate. They purport to be exercising private law powers, around the terms on which they license their IP.

Mostly, it's a worry that they will attempt to exercise those private law powers over things that we actually do have a legal right to do. In the past, they have not been openly hostile, have been very cooperative with 3PPs, and 20+ years of them doing nothing hostile in relation to OGL 1.0a led to a lot of trust, which went down the drain over the past weeks and has placed 3PPs in a very uncomfortable position.

 

[Matt Thomason]

On the one hand, all of this is going very quickly (especially in terms of legal documents with far-reaching effect), so I would expect that they will continue to evolve and explain as they catch their breath.

I really hope so.

On the other hand ... I mean ... they did explain the OGL 1.0a before .... with a FAQ .... and, um. Yeah. Given that, I'm not sure that any explainer is going to help much, unfortunately.

It is a huge shame there is no ogf-l equivalent this time around for 3PPs to make their voices heard above the general noise and to raise the specific concerns they have, with a helpful WotC representative on hand to answer questions.

 

[rcade]

If WotC try to insist on asserting their copyright in the text of the OGL that gets a bit trickier. For the reasons I (and some others) have posted seems like a weak claim, and to me not one they would bother making. But even if they did, it wouldn't bring any contracts to an end. So what would then be needed would be a mechanism within that ecosystem for parties to mutually vary the terms of their licence so as to no longer require one another to reproduce the text of the OGL.

If Hasbro forbid the reproduction of OGL 1.0a and publishers started putting "This work is licensed under the terms of Open Game License 1.0a (not reprinted here) and has the following Section 15 and identification of Open Game Content and Product Identity," the only parties with standing to call it a breach of the license are the ones in Section 15. But Hasbro isn't going to tell a publisher "You are violating the OGL by not including the contract we told you not to include." Or at least they'd be on such a flimsy limb that an exasperated judge might tell them "if you want publishers to reprint the license stop telling them they can't do it."

 

[kenada]

If Hasbro forbid the reproduction of OGL 1.0a and publishers started putting "This work is licensed under the terms of Open Game License 1.0a (not reprinted here) and has the following Section 15 and identification of Open Game Content and Product Identity," the only parties with standing to call it a breach of the license are the ones in Section 15. But Hasbro isn't going to tell a publisher "You are violating the OGL by not including the contract we told you not to include." Or at least they'd be on such a flimsy limb that an exasperated judge might tell them "if you want publishers to reprint the license stop telling them they can't do it."

The OGL is supposed to be listed in your section 15 declaration, so wouldn’t that give Hasbro standing in this situation?